Story 1: President Trump Goes On Media Offense — Reaction To Mueller Statement — No Collusion, No Obstruction, No Redo — Mueller Was Conflicted and Never Should Have Been Appointed Special Counsel — Impeachment Is A Dirty Word — No High Crimes and Misdemeanors –Absolutely No Grounds For Impeachment — Videos —

Trump reacts to Mueller’s Russia probe statement in angry tirade

Hannity: Mueller contradicted himself during statement

Gingrich: Mueller ‘didn’t have the right’ to say what he said

Dershowitz: Shame on Robert Mueller for exceeding his role

THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL

The statement by special counsel Robert Mueller in a Wednesday press conference that “if we had confidence that the president clearly did not commit a crime, we would have said that” is worse than the statement made by then-FBI Director James Comey regarding Hillary Clinton during the 2016 presidential campaign. Comey declared in a July 2016 press conference that “although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Comey was universally criticized for going beyond his responsibility to state whether there was sufficient evidence to indict Clinton. Mueller, however, did even more. He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump. By implying that President Trump might have committed obstruction of justice, Mueller effectively invited Democrats to institute impeachment proceedings. Obstruction of justice is a “high crime and misdemeanor” which, under the Constitution, authorizes impeachment and removal of the president.

Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.

Virtually everybody agrees that, in the normal case, a prosecutor should never go beyond publicly disclosing that there is insufficient evidence to indict. No responsible prosecutor should ever suggest that the subject of his investigation might indeed be guilty even if there was insufficient evidence or other reasons not to indict. Supporters of Mueller will argue that this is not an ordinary case, that he is not an ordinary prosecutor and that President Trump is not an ordinary subject of an investigation. They are wrong. The rules should not be any different.

Remember that federal investigations by prosecutors, including special counsels, are by their very nature one-sided. They hear only evidence of guilt and not exculpatory evidence. Their witnesses are not subject to the adversarial process. There is no cross examination. The evidence is taken in secret behind the closed doors of a grand jury. For that very reason, prosecutors can only conclude whether there is sufficient evidence to commence a prosecution. They are not in a position to decide whether the subject of the investigation is guilty or is innocent of any crimes.

That determination of guilt or innocence requires a full adversarial trial with a zealous defense attorney, vigorous cross examination, exclusionary rules of evidence and other due process safeguards. Such safeguards were not present in this investigation, and so the suggestion by Mueller that Trump might well be guilty deserves no credence. His statement, so inconsistent with his long history, will be used to partisan advantage by Democrats, especially all those radicals who are seeking impeachment.

No prosecutor should ever say or do anything for the purpose of helping one party or the other. I cannot imagine a plausible reason why Mueller went beyond his report and gratuitously suggested that President Trump might be guilty, except to help Democrats in Congress and to encourage impeachment talk and action. Shame on Mueller for abusing his position of trust and for allowing himself to be used for such partisan advantage.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.

Story 2: Attorney General Barr Responds To Former Special Counsel Robert S. Mueller III Statement — Case Closed — No Collusion and No Obstruction — Mueller Went Beyond His Report By Calling for A Process — Impeachment — Shame on Mueller — Mueller Will Be Taking Questions on His Investigation and Team By Republicans in Senate and House — Videos —

Sidney Powell on Robert Mueller’s ‘poster boy for prosecutorial misconduct’

LICENSED TO LIE: Exposing Corruption in the Department of Justice

Andrew Weissmann: Five Important Facts

Tune in to “CBS This Morning” on Friday, May 31, for the full interview with Attorney General William Barr.

Attorney General William Barr said he believes special counsel Robert Mueller could have reached a decision on whether President Trump committed obstruction of justice, regardless of long-standing Justice Department policy that prohibits the indictment of a sitting president.

In his first network interview since being sworn in, Barr said the special counsel, who gave a rare public statement Wednesday reiterating some of the key findings in his more than 400-page report, could have concluded the president broke the law without actually charging him — or cleared him of wrongdoing.

“The opinion says you cannot indict a president while he is in office, but he could’ve reached a decision as to whether it was criminal activity,” Barr added. “But he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons.”

When he became aware that Mueller would not make a determination in his obstruction of justice probe — which investigated 11 instances in which Mr. Trump tried to derail the Russia investigation — Barr said he and Deputy Attorney General Rod Rosenstein “felt it was necessary” for them to make decision on the issue.

In a letter to Congress after Mueller submitted his report, Barr said he and Rosenstein concluded that the nearly two-year investigation did not contain sufficient evidence to establish Mr. Trump obstructed justice.

On Wednesday, Mueller said bringing criminal charges against the president was not an option since the special counsel’s office was part of the Justice Department and bound by its policies — including a legal opinion barring the indictment of a sitting president.

Mueller also ruled out the possibility of issuing a sealed indictment or making an accusation of criminality without pursuing formal charges. If a sealed indictment became public, it could undermine the president’s ability to govern, and making an accusation without bringing charges would not give the president the chance to clear his name in court.

Mueller said the U.S. Constitution “requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” Many Democrats said the special counsel’s remarks represented a referral of his investigation to Congress, which has the power to impeach and remove a president from office.

Barr said Thursday he did not know what Mueller was “suggesting” in his statement.

“The Department of Justice doesn’t use our powers of investigating crimes as an adjunct to Congress,” he added.

Asked about accusations that he has been shielding the president from scrutiny since taking office, Barr said he expected the flurry of criticism, which he noted “goes with the territory of being attorney general in a hyper-partisan period of time.”

“The Department of Justice is all about the law, and the facts and the substance,” he said. “And I’m going to make the decisions based on the law and the facts and I realize that’s in tension with the political climate we live in because people are more interested in getting their way politically.”

Departing special counsel Robert S. Mueller III finally spoke publicly Wednesday, and his carefully chosen comments highlight the ways in which he disagrees with his boss, Attorney General William P. Barr, about the facts and the law surrounding the investigation into President Trump.

“If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said Wednesday.

Barr had that confidence. He declared in March that while Mueller’s principal conclusions did not include a determination of whether the president had committed the crime of obstruction of justice, Barr had reviewed the evidence and concluded Trump did not break the law.

“The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” Barr wrote to Congress at the time.

In his report and his public remarks, Mueller indicated he holds a different view on the question of potential presidential crimes, refusing to clear the commander in chief and alluding to Congress’s impeachment power as the constitutional arbiter.

Mueller’s remarks also made clear how heavily his office relied on a long-standing legal opinion from the Justice Department’s Office of Legal Counsel that a sitting president cannot be indicted. That opinion, Mueller said Wednesday, “says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”

Asked about his disagreements with Mueller, Barr has made a point of emphasizing that when the two men met privately on March 5 to discuss the findings, Mueller said he would not claim the president would have been charged with a crime if he weren’t the president.

“We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made very clear several times that that was not his position,” Barr told reporters last month.

Democrats have accused Barr of misleading lawmakers and the public on this point.

Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, called Mueller’s comments Wednesday “a direct rebuke” of the attorney general’s statements. He accused Barr of “deliberately and repeatedly” misleading the American people on the issue of the OLC opinion.

Spokesmen for Mueller and Barr said Wednesday evening that the two men’s statements about the OLC memo are not in conflict.

Since filing their 448-page report, Mueller and his team have been frustrated by what they perceive as a lack of public understanding about this point — that Justice Department policy and fairness prohibit the special counsel from reaching a decision, even secretly, on whether the president committed a crime.

“That was the Justice Department policy, and those were the principles under which we operated,” Mueller said. “From them we concluded that we would not reach a determination — one way or the other — about whether the president committed a crime. That is the office’s final position, and we will not comment on any other conclusions or hypotheticals about the president.”

Having adopted that stance, Mueller and his team also concluded it would be improper for him to say that the president would be charged with obstruction if it were not for the Justice Department policy, because saying that would also amount to a criminal accusation against Trump, according to people involved in the discussion.

Mueller’s team came to believe that making any sort of impeachment referral to Congress also would fall under the category of accusing the president of a crime, according to people familiar with their discussions who spoke on the condition of anonymity to discuss internal deliberations.

For those reasons, Mueller was guarded in his comments about the findings and wants to avoid being drawn into a back-and-forth in congressional testimony that could be construed as accusing the president of a crime, these people said.

Barr and Mueller also disagreed in other telling ways.

On Wednesday, Mueller said there was “insufficient evidence” to show a conspiracy among Trump associates or Americans to aid Russian efforts to interfere in the 2016 election.

When Barr announced Mueller’s findings, he said there was “no evidence” to show any such conspiracy.

But Mueller’s appearance also sought to play down any tension between the two longtime friends over recent areas of disagreement. After the special counsel’s report was filed in March, Mueller had privately urged the attorney general to quickly release the executive summaries.

Barr refused, arguing he wanted a nearly full version of the document to be released all at once.

“We appreciate that the attorney general made the report largely public,” Mueller said Wednesday. “I do not question the attorney general’s good faith in that decision.”

Mueller also said no one had pressured him to avoid testifying to Congress.

“I hope and expect this to be the only time that I will speak about this matter. I am making that decision myself — no one has told me whether I can or should testify or speak further about this matter,” Mueller said.

Robert Mintz, a former federal prosecutor, said Mueller’s statements show “a major disconnect with Barr on the issue of obstruction of justice.”

“Mueller made clear that he would have exonerated the president on obstruction if he believed the evidence warranted such a finding. Yet Barr, looking at the same evidence, came to the opposite conclusion and issued a statement that the evidence was insufficient to establish that the president committed obstruction of justice,” Mintz said.

Mueller’s appearance Wednesday seemed to put the issue squarely before Congress, while also signaling that, going forward, he would not be a willing participant in that process.

The work, Mueller said, “speaks for itself,” and he said he would not provide Congress any information beyond what lawmakers have in the report.

Trump and his team have been effective in eight weeks of shaping the findings — and his supporters declared Mueller’s statements a fresh political victory for the president.

“Today was phenomenal news. Former Director Mueller said he was going to ride off into the sunset and let his report stand,” said Jason Miller, a Trump adviser and former campaign spokesman. “For Americans who have already made their decision here, that’s very definitive. Everyone has already decided on this issue.”

Trump has repeatedly praised Barr to White House aides and friends — saying he has defended him and proved to be a “real” attorney general. Trump gave positive reviews to Barr’s congressional testimony, his news conference before the report and his public comments, White House officials said.

The president was pleased that Mueller does not want to testify, an aide said.

Rep. Hakeem Jeffries, a New York Democrat on the Judiciary Committee, said Mueller’s comments undercut Barr’s past claims.

At some point, Jeffries insisted, Mueller is “going to tell the whole story.”

Perhaps most explosively, Mueller said in the report that Trump’s “efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

In a press conference ahead of the report’s release on Thursday, Attorney General William Barr pointed to 10 specific episodes Mueller investigated for obstruction. Though Barr did not disclose what they were, we now know they include Trump’s decision to fire FBI Director James Comey, his attempts to get former Attorney General Jeff Sessions involved in the investigation, and Trump’s call to then-White House counsel Don McGahn to direct him to get Mueller removed.

Barr also said Thursday morning that he and Deputy Attorney General Rod Rosenstein “disagreed with some of the special counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law,” but that wasn’t the only factor in their decision-making. Democrats have already said they’d like to hear from Mueller himself on the report, and the debate about whether these should have amounted to a crime is likely only beginning.

Mueller’s final report on his findings of a nearly two-year investigation into Russian interference in the 2016 election outlines two lines of inquiry: collusion and obstruction of justice. Mueller did not come to a conclusion on whether Trump committed obstruction of justice — instead, Barr and Rosenstein made the decision that the evidence was “not sufficient to establish” obstruction.

Below are those 10 episodes Mueller examined in the obstruction section. The report also includes the examination of the Trump campaign’s response to reports of Russian support for Trump. The president apparently worried after his election that reports of Russian interference might “lead the public to question the legitimacy” of his victory.

Here are the 10 instances of potential obstruction Mueller outlines in his report:

Trump asking James Comey to let Michael Flynn go

Trump’s reaction to the Russia investigation

The firing of James Comey

Mueller’s appointment and efforts to oust him

Efforts to curtail the Russia investigation

Attempts to stop the public from seeing the evidence

Trump trying to get Jeff Sessions to take back control of the investigation

Trump telling Don McGahn to deny that the president had wanted the special counsel removed

Trump’s team asking Flynn for a “heads up” on information and commending Paul Manafort for not “flipping”

The president’s changing behavior toward Michael Cohen

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Is Mueller Bound by OLC’s Memos on Presidential Immunity?

President George W. Bush names Robert Mueller director of the FBI on July 5, 2001. Eric Draper/White House

The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment. By contrast, two different memos—authored by the Office of Special Counselinvestigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion.

That these different offices have repeatedly disagreed on this central question isn’t really all that surprising. They have different institutional roles, different missions, and different cultures, all of which might impact their respective approaches to the issue. For present purposes, however, the most important practical question is whether the current special counsel, Robert Mueller, is free to exercise his own independent judgment on the immunity issue, or whether he is instead bound to follow OLC’s take. If it’s the latter, then those two OLC memos would together constitute the single greatest shield protecting President Trump from prosecution: No matter how strong the evidence against him may become, if OLC’s memos are binding then the President simply cannot be indicted until after he leaves office—by which point, it bears noting, the statute of limitations for any relevant conduct may well have expired.

That skepticism may well represent a minority view, at least among those with substantial experience working with OLC—experience that Jack and Marty have, and that I do not. Still, even an outsider’s minority view merits an articulation of some of the main points in its favor.

To my mind, there are at least three such points here. First and foremost, the justifications underlying the general practice of treating OLC opinions as binding on executive branch officials do not necessarily apply to the Office of Special Counsel, which is supposed to be insulated from the influence of political appointees when assessing the president’s exposure to criminal liability. Second, the formal regulations setting out the special counsel’s authority do not clearly compel him to follow OLC’s lead. And third, historical practice suggests that he need not do so.

Let’s take these three points in turn.

I. When It Comes to Presidential Immunity, the Normal Reasons for Treating OLC Memos as Binding Do Not Necessarily Apply to the Special Counsel

The notion that OLC opinions bind the Office of Special Counsel draws support from a widely held broader proposition: OLC opinions bind all executive branch officials with respect to whatever legal issues those opinions resolve. As Trevor Morrison explains, that broader proposition is not exactly beyond dispute: “the bindingness of the Attorney General’s (or, in the modern era, OLC’s) legal advice has long been uncertain,” he writes, and is the subject of “almost two hundred years of debate.” That debate, however, can largely be bracketed here. Because even if one accepts OLC’s general authority “to say what the law is” for the rest of the executive branch, it’s not clear that such authority extends to the Office of Special Counsel under the current circumstances.

To see why, just consider OLC’s own explanation for why its opinions are binding, as set out in an opinion it issued back in 1987. According to OLC, that power has two foundations: The first is the attorney general’s “statutory obligation,” delegated to OLC, “to render opinions” when he is requested to do so by one of the heads of the other executive departments regarding any “questions of law arising in the administration of their” duties. The second is the attorney general’s statutory responsibility, “except as otherwise authorized by law,” to “conduct litigation on behalf of the United States,” which “necessarily includes the exclusive and ultimate authority to determine the position of the United States on the proper interpretation” of legal issues.

What stands out most about these two asserted bases of OLC’s authority is that neither clearly supports the claim that the two OLC memos on presidential immunity bind the Office of Special Counsel. As to the first source of authority, neither of those memos was requested by the head of an executive department outside of DOJ, so the attorney general’s duty “to render opinions” to such officials simply doesn’t apply. (Indeed, it’s not altogether clear who requested that these two particular memos be written in the first place.)

That leaves the second source of authority, which by its own terms is subject to an important exception: OLC’s authority to issue binding opinions does not extend to executive branch officials who are “authorized by law” to “conduct litigation on behalf of the United States” without first getting the attorney general’s blessing for the positions they intend to take. Due in part to this exception, independent agencies within the executive branch, to quote former OLC Deputy and now-D.C. Circuit Judge Nina Pillard, are “not…presumptively bound” by OLC’s opinions. Indeed, according to OLC’s own official “Best Practices,” the Office typically won’t even “provide an opinion to an executive agency the head of which does not serve at the pleasure of the president (e.g., an agency head subjected to a ‘for cause’ removal restriction)” unless that agency first agrees to “conform its conduct” to whatever opinion OLC might provide.

The principle that independent officers are not presumptively bound to follow OLC’s opinions is important in the present context because the Office of Special Counsel bears many of the traditional hallmarks of such independence. The special counsel himself can be removed from office only for “good cause,” such as “misconduct” or “dereliction of duty.” Moreover, he has “independent authority” to conduct litigation on behalf of the United States, in the trial courts and on appeal, without being “subject to the day-to-day supervision of any official” in the Department of Justice, including the attorney general. Similarly, he has no obligation to seek preapproval from any such official prior to taking a given course of action.

To be sure, the special counsel is required to keep the attorney general apprised of significant developments in the investigation. And the attorney general does have some authority to block the special counsel from taking a “prosecutorial step” like filing an indictment. That authority, however, is quite limited: the attorney general must “give great weight to the views of the Special Counsel” on the matter, and can only overrule the special counsel if he determines “that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Moreover, if the attorney general overrules the special counsel, he must explain that decision to Congress.

In view of these limitations, Deputy Attorney General Rosenstein—the only official with any authority over Special Counsel Mueller, given Attorney General Sessions’s recusal—has made clear that, in his view, Mueller has “full independence” to conduct the pending investigation. One can parse Rosenstein’s words. But the sentiment they express shouldn’t really be too surprising. After all, independence from political actors is the very raison d’être for having an Office of Special Counsel in the first place. Absent such independence, criminal investigations of high-level executive branch officials, like the president, simply could not escape the inherent “conflicts and potential conflicts of interest” that would arise if they were overseen by the president’s own political appointees. Indeed, it’s hard to imagine circumstances in which improper structural biases would be more stark or more problematic than a case in which a lawyer is asked to decide whether his boss—the person who picked him for the job and who can dismiss him from it—can be sent to prison.

And yet, that is precisely the question that was put to the Office of Legal Counsel in 1973 and in 2000, as the clouds of indictment drew near to the two presidents then in office.* Crucially, however, unlike the Office of Special Counsel, the Office of Legal Counsel is not insulated from presidential control. On the contrary, as Judge Pillard observes, OLC is subject to a greater degree of political control than many other DOJ offices: not only is it headed by the President’s political appointee, but “all of the OLC deputies are politically appointed as well,” unlike, say, the Office of the Solicitor General, where “three out of the four deputies are career employees.”

As Judge Pillard goes on to observe, “a more politically led office seems less likely to make impartial, arms-length constitutional decisions.” That seems especially true when the constitutional decisions at issue are guided by “neither the text nor the history of the Constitution,” but turn instead on how one balances the president’s interests “as the sole head of the executive branch” against the broader societal interests in ensuring that no person is above the criminal law—which is precisely how OLC describes the nature of the presidential-immunity analysis.

In conducting that interest-balancing analysis, it would hardly be unusual for OLC to place special—and perhaps outsized—emphasis on the president’s side of the ledger. Indeed, to hear Yale Law School’s Bruce Ackerman tell it, OLC “almost always concludes that the president can do what he wants.” One need not endorse so broad a critique, however, to acknowledge the more basic fact that OLC not only works for the president but also tries to “facilitate the objectives of the President” where possible. On the contrary, that is precisely how OLC itself describes its role in its “Best Practices” memo.

That memo goes on to observe that, in addition to facilitating the president’s interests, OLC also typically “keeps the Office of the Counsel to the president appropriately apprised of its work.” Imagine, however, a White House Counsel calling up the head of OLC for an update on the “Can we indict the Boss?” memo.

The very prospect that such a phone call might occur is why the Office of Special Counsel exists—to avoid such inherent conflicts of interest. And no matter how earnest or upright OLC’s attorneys may be, there is simply no avoiding the central concern: binding the Special Counsel to the judgments of the president’s political appointees, on the very question of the president’s own criminal liability, would significantly undermine the independence that the Office of Special Counsel was built to provide—and that, in the current situation, it has been promised. Given that independence, it’s simply not clear that OLC’s memos, even if generally binding on other executive branch officials, are binding on the Special Counsel here.

II. The Special Counsel’s Governing Regulations Do Not Clearly Compel Him to Follow OLC Opinions

Even if one thinks that the Special Counsel has no freestanding obligation to follow these two OLC memos, he is unquestionably bound by his own authorizing regulations, which require him to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” Does this regulatory text require the special counsel to follow OLC’s conclusions?

As I’ve previously noted, probably not, given that this “regulatory text seems to focus more on administrative protocols and procedures than on” the “legal analyses” that OLC produces. That textual argument, moreover, grows only stronger once the special counsel regulations are read in the context of their adjacent regulatory provisions, which define the authority of all of the other component offices of the Department of Justice. As those other regulations make clear, there are a host of offices in the Department—ranging from the Office of the Assistant Attorney General for Administration, to the Advisory Committee of U.S. Attorneys, to the aptly named Office of Legal Policy—that are expressly authorized to promulgate “rules,” “regulations,” “procedures,” or “policies” for the Department, and thus to bind the special counsel.

The Office of Legal Counsel, however, is conspicuously not granted such authority. Rather, according to OLC’s authorizing regulation, its central charge is to render “opinions and legal advice to the various agencies of the government.” Indeed, the sole mention of “policies,” “rules,” “regulations,” or “procedures” in OLC’s authorizing regulation is telling. A seemingly peripheral paragraph in OLC’s mandate tasks the Office with “consulting with the Director of the Office of Government Ethics regarding the development of policies, rules, regulations, procedures and forms” necessary to implement the rather mundane provisions of “section 402 of the Ethics in Government Act of 1978.” That narrow statutory provision, however, has nothing to do with OLC’s core opinion-writing duties, let alone with establishing departmental policy concerning immunity from prosecution.**

In short, while departmental regulations repeatedly and expressly grant other offices within DOJ the power to promulgate “rules, regulations, procedures, and policies” on a wide range of issues—and thus to bind the Office of Special Counsel on those issues—OLC is simply not granted any such authority, except with respect to an unrelated administrative function not relevant here.

III. Historical Practice Supports Allowing the Special Counsel to Assess the Presidential-Immunity Issue for Himself

Perhaps in recognition of the points raised above, the only other special prosecutors who have ever investigated a sitting president for criminal misconduct both performed their own independent assessments of the presidential-immunity issue, without simply taking OLC’s opinions as binding authority. Neither of those special prosecutors was subject to the exact same regulatory authorization that establishes Mueller’s office. But they were subject to similar provisions defining the scope of their authority. Specifically, the regulation governing Watergate special prosecutor Leon Jaworski said that he was “subject to the administrative regulations and policies of the Department of Justice.” And the statute establishing Kenneth Starr’s Office of Independent Counsel similarly required him to “comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws,” unless doing so “would be inconsistent with the purposes” of the statute.

And yet, notwithstanding these express commands, Jaworski and Starr both sought their own independent analyses of the presidential-immunity question, clearly indicating that they did not consider themselves bound by OLC’s prior conclusions. Indeed, the Starr memo twice acknowledged that the “Office of Independent Counsel is, in general, required to follow Department of Justice regulations governing other federal prosecutors,” an obligation that the memo did not treat as at all inconsistent with its ultimate conclusion, contra OLC, that the president can be indicted. And the Jaworski memo went so far as to expressly acknowledge OLC’s contrary view, before proceeding to reject it.

In short, both of Mueller’s predecessors were bound to follow DOJ policy, but neither considered himself bound by OLC’s memos concerning presidential immunity. Mueller is governed by a different set of regulations, which have scant independent history of their own. And the fact that his predecessors took a close, independent look at the presidential-immunity question does not conclusively determine what Mueller’s obligations are today. But it does offer some persuasive evidence as to the course he is permitted to take.

* * *

In sum, unique features of the specific OLC memos at issue here may well cut against the claim that Mueller is bound by them, and neither the regulatory text nor the history of the special counsel’s office requires a contrary conclusion.

And if that all still feels strange, let me close by offering a hypothetical twist to the ongoing Russia investigation that will hopefully make this all feel a bit more concrete. Imagine that, a few months from now, as indictment chatter builds, a newly installed attorney general (Jeff Sessions’ replacement) issues a formal “Opinion of the Attorney General” that opens with the following statement:

Upon careful review of the Constitution’s text, history, and structure, it is the opinion of this Office and of the Department of Justice that close family relatives of the President of the United States—including his spouse, his children, and his children’s spouses—are immune from criminal prosecution for so long as the President is in office. Moreover, it is the opinion of this office that a President can never be prosecuted, whether during his term of office or thereafter, for any conduct related either to his seeking the presidency or to the performance of his official acts while President. 44. Op. Att’y Gen. 1 (2018)

I may be wrong, but I suspect that were a future attorney general to issue such an opinion, in the midst of the Mueller investigation, he or she would be met with fierce opposition—including, perhaps, from some who now contend that Mueller is bound to follow “the formal opinions of the Attorney General” as articulated by OLC. Note, however, that the substantive merits of this hypothetical opinion are not exactly absurd. Prosecuting the President’s children, after all, would surely “interfere with the President’s ability to carry out his constitutionally assigned functions,” perhaps even more so than prosecuting the President himself. (I’ve represented over 120 people accused of crimes, and most had parents who would have quickly opted to take their child’s place.) Similarly, the notion that the Constitution might bar a prosecution premised on the President’s official acts or his campaign activities has already been raised by some legal scholars.

To be sure, the attorney general opinion suggested above would certainly draw criticism on the merits. But still, I suspect a significant portion of any potential backlash would stem from the fact that the opinion was issued by the President’s own political appointee—and that even though it articulates principles of general applicability, it has a practical effect much like an anticipatory pardon, shorn of the political complications that an actual pardon would entail.

Of course, like most law professor hypotheticals, this one is in some sense an exaggeration—or at least so one hopes. But it serves to illustrate the central point: The existing OLC memos on presidential immunity, like the hypothetical one above, also function to some degree as de facto anticipatory pardons of potential criminal activity committed by a president, especially given the serious practical challenges that arise when a prosecution is delayed for too long. And the existing OLC memos, like the hypothetical one above, were also crafted by presidential appointees, at the behest of presidents facing genuine prospects of indictment—not by the special counsels whose entire purpose is to insulate presidential charging decisions from precisely such political influence.

Perhaps the current special counsel, exercising the independent judgment that his predecessors embraced, would conclude that OLC is right and that a sitting president is in fact immune from indictment. There is a big and important difference, however, between agreeing with such a view and being forced to adopt it even if you think it’s wrong. The whole point of having a special counsel is to benefit from his independent judgment on precisely this sort of issue.

* It bears noting that the timing of OLC’s two immunity memos is somewhat curious. According to the “Best Practices” memos written by the heads of OLC under two different administrations, “OLC generally avoids opining on questions likely to arise in pending or imminent litigation involving the United States as a party.” As Nelson Lundexplains, that practice reflects the reality that “OLC does not serve as the mouthpiece for the Solicitor General or the litigating divisions” of the Department of Justice, which “will often defend” or advance a proposition in court “even if OLC would have advised against it.” When the ball is in the litigating divisions’ court, in other words, OLC typically defers to their authority to articulate the position of the United States. And when the litigation at issue is a potential criminal prosecution of the president of the United States, the relevant “litigating division” is the Office of Special Counsel.

Yet, in an apparent deviation from its articulated best practices, OLC issued the presidential-immunity memos in the thick of two separate pending cases. Indeed, the first memo actually contradicted the litigating position that Special Counsel Jaworski soon articulated on behalf of the United States to the Supreme Court. And the second opinion was prepared as the Office of Independent Counsel was considering a draft indictment of President Clinton, in a process that had also already generated litigation. The fact that OLC may have deviated from its ordinary best practices to issue these memos—thereby perhaps usurping the special counsels’ rightful authority to articulate the government’s litigating position—may be yet another reason not to treat the memos as binding. [Editor’s Note: An earlier version of this post suggested that the Special Counsel’s Reply Brief in United States v. Nixon was filed in July of 1973. The brief was filed in July of 1974.]

** Coincidentally, a separate section of the Ethics in Government Act of 1978 established the now-defunct Office of Independent Counsel, the predecessor to the Office of Special Counsel currently established by 28 C.F.R. §600 and occupied by Mueller. OLC’s regulations, however, do not assign it any responsibilities with respect to “policies, rules, regulations, or procedures” connected to that now-expired office, which was created by Section 601 of the Ethics in Government Act, not the Section 402 that is referenced in OLC’s authorizing regulation.

From 2002 to 2005, Weissmann was deputy director and then director of the task force investigating the Enron scandal.[1] His work resulted in the prosecution of more than 30 people for crimes including perjury, fraud, and obstruction including three of Enron’s top executives, Andrew Fastow, Kenneth Lay. and Jeffrey Skilling. In a follow-up case in U.S. District Court, Weissmann also was successful at arguing that auditing firm Arthur Andersen LLP had covered up for Enron. In that case, which resulted in the destruction of Andersen, he convinced the district judge to instruct the jury that they could convict the firm regardless of whether its employees knew they were violating the law.[3] That ruling was later unanimously overturned by the Supreme Court in Arthur Andersen LLP v. United States, in which the court held that “the jury instructions failed to convey the requisite consciousness of wrongdoing.”[3]

On June 19, 2017, Weissmann joined Special Counsel Mueller’s team in investigating Russian interference in the 2016 United States elections.[5][6]. He was said to be “the architect of the case against former Trump campaign chairman Paul Manafort.” A news report in March 2019 said he would soon leave the Justice Department to become a faculty member at New York University and to work on public service projects.[7]

Contents

History

The Office of Legal Counsel was created in 1934 by an act of US Congress, as part of a larger reorganization of executive branch administrative agencies. It was first headed by an assistant solicitor general. In 1951, Attorney General J. Howard McGrath made it a division led by an assistant attorney, and named it the Executive Adjudications Division. This name was changed to Office of Legal Counsel in an administrative order by Attorney General Herbert Brownell Jr., issued April 3, 1953.[1]

Responsibilities

The Office of Legal Counsel (OLC) assists the Attorney General of the United States in their function as legal adviser to the President and all the executive branch agencies, hence the appellation “the president’s law firm.”[2] OLC drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the Department of Justice. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

Usually all executive orders and proclamations proposed to be issued by the President are reviewed by OLC for form and legality, as are various other matters that require the President’s formal approval. In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, OLC also functions as general counsel for the Department of Justice itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General’s approval.

According to press accounts, OLC has historically acted as a referee within the executive branch and its legal opinions have generally been given deference among the agencies and departments.[3]

Controversies

Trump Administration

During the Trump Administration, questions have been raised about OLC’s capacity for exercising sound, apolitical legal judgment.[4] The Trump OLC has never publicly reached an outcome that has dissatisfied Attorney General Jeff Sessions or President Trump. Multiple executive orders that OLC has approved for lawfulness have, however, been invalidated by federal courts. For example, in November of 2017, a federal judge permanently enjoined Executive Order 13768, which stated that “sanctuary jurisdictions” including “sanctuary cities” who refused to comply with immigration enforcement measures would not be “eligible to receive Federal grants, except as deemed necessary for law enforcement purposes” by the U.S. Attorney General or Secretary of Homeland Security.[5]

OLC also approved as lawful President Trump’s travel ban (“Travel Ban 1”) on January 27, 2017.[4] OLC put its imprimatur on an executive order that prohibited all refugees, immigrants, non-immigrants (travelers, students, patients coming for surgery, etc.), and green card holders from certain Muslim-majority countries from setting foot on U.S. soil.[6] Gannon worked with Rosemary Hart and Scott Stewart of OLC, as well as with John Bash of the White House Counsel’s Office, on the Order.[7] In emails, Stewart referred to the draft order as the “immigration EO about terrorists.”[7] Emails also indicate that OLC intended to approve the Order notwithstanding potential concerns about its lawfulness, with Hart writing in an email a few hours before the Order was signed, “We of course are in a crunch time and we don’t know what sort of leeway we have to be making changes.”[7] On January 30, 2017, Acting Attorney General Sally Yates announced that the Department of Justice would not defend the Order in Court. She was fired that evening.[8] She has since testified that OLC did not notify her of the existence of the draft travel ban before it was issued.[9]

Notwithstanding OLC’s conclusion that the Order was lawful, Travel Ban 1 was never endorsed by a single federal court. After a federal judge in Seattle temporarily blocked Travel Ban 1 from continuing in effect, and the 9th Circuit Court of Appeals upheld that decision, President Trump withdrew the Order and signed a new executive order, Travel Ban 2, which OLC also approved as lawful.[8] President Trump described Travel Ban 2 as a “watered down” version of the first Travel Ban Order, writing on Twitter that “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!”[10] Federal district court judges in Hawaii and Maryland blocked Travel Ban 2 from going into effect, and the 4th Circuit Court of Appeals upheld the Maryland judge’s determination.[11]

On September 24, 2017, President Trump issued a third travel ban executive order, Travel Ban 3, which OLC also approved as lawful. The Supreme Court, in Hawaii v. Trump, ultimately held that under the appropriate standard of review, the Court of Appeals erred in concluding that challengers to Travel Ban 3 were likely to succeed on the merits of their constitutional claim.[12] Justice Kennedy, who provided the fifth vote for that conclusion, authored a concurrence which indicated that while he believed that judicial review of the travel ban was circumscribed by the “foreign affairs power of the Executive,” executive branch lawyers had an independent obligation to ensure that the President was not violating constitutional rights, an obligation they had not fulfilled. Justice Kennedy wrote that while there are “numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” the “Constitution and the rights it proclaims and protects” are not “confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do.” Indeed, it is “an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs.” And “the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”

Obama Administration

In the first two years of the Obama Administration, OLC at least twice reached an outcome with Administration officials disagreed. In June 2011, New York Times reporter Charlie Savage revealed that President Obama took the unusual step of overruling the Office of Legal Counsel’s advice with respect to the legality of military action in Libya. OLC’s written opinions have historically been considered binding on the executive branch, unless they are overturned by the Attorney General or President.[13] In 2009, Attorney General Eric Holder overturned an unpublished OLC opinion that had concluded that a D.C. voting rights bill pending in Congress was unconstitutional.[14]

In May 2005, during President George W. Bush’s second term, a set of similar torture memos were approved by Steven G. Bradbury, who served as acting head of OLC from February 2005 through the remainder of President Bush’s second term. Bradbury was first officially nominated on June 23, 2005, and then repeatedly re-nominated because of Senate inaction.[15] His position became a point of political friction between the Republican President and the Democratic-controlled 110th Congress, when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points.[16][17][18] An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.[19]

Served as acting AAG 2005–2007 (nominated June 23, 2005; nomination approved by Senate Judiciary Committee but never voted on by full Senate), continued to function as senior appointed official in charge of OLC until January 20, 2009.

Trump teases ‘big league statement’ on immigration at US-Mexico border

President Donald Trump teased on Thursday that he has a “major statement” forthcoming on illegal immigration into the United States from the southern border.

“It will be a statement having to do with the border and having to do with people illegally coming over the border and it will be my biggest statement so far on the border,” Trump told reporters at the White House.

Trump declined to provide more details about his announcement but said he is not closing the southern border to immigration.

“I’m not closing the border, I’m doing something else,” Trump said.

The President said his announcement is expected either Thursday or Friday.

“This is a big league statement. We are going to do something very dramatic on the border because people are coming into our country,” Trump said.

Acting Homeland Security Secretary Kevin McAleenan, traveling in Guatemala, said Thursday morning he has spoken with Trump but did not say anything about a possible announcement.

“In all honestly I was late because the President of the United States wanted an update on my trip — our partnership with Guatemala. So I just got off the phone with him. He’s very happy to hear about our efforts with the government some of the initial successes operationally, announced yesterday. But it’s going to be a whole of the US government effort and whole of Guatemala government and society to work on these challenges together.”

Trump has promised a wall on the US-Mexico border and espoused hardline rhetoric against illegal immigration since the days of his presidential campaign.

Two weeks ago from the White House Rose Garden, Trump pitched a broad immigration proposal to reform border security and legal immigration, but the plan landed with a thud and limited congressional interest.

The President’s push for a border wall has been met with resistance from congressional Democrats, and led to the longest shutdown in US history earlier this year when Trump sought $5.7 billion in funding for his border wall.

Congress instead passed a spending package that provides $1.375 billion for approximately 55 miles of new barriers in the Rio Grande Valley sector, with restrictions on where the structures can be mounted and the types of materials used.

On Tuesday, US Customs and Border Protection awarded a contract to build three new miles of wall on federal land in the Rio Grande Valley of Texas, allowing the agency to start construction where no barriers existed before.

Trump’s tease to a border announcement comes the morning after Robert Mueller spoke for the first time about the Russia investigation since he was appointed special counsel.

Trump tariff threats alarm Mexico growers, economist

Tomato exporter Sergio Esquer Peiro spent much of Friday in hastily called meetings with other stunned growers, trying to evaluate the potential fallout of U.S. President Donald Trump’s threat to slap coercive tariffs on all imports from Mexico.

The sudden announcement caught observers on both sides of the border by surprise and prompted President Andrés Manuel López Obrador to dispatch his top diplomat to Washington for talks seeking to head off the proposed tariffs.

Obrador said Mexico won’t panic over the threatened hike, but economists and those whose livelihoods depend on the trade relationship worth hundreds of billions of dollars a year worry that stiff duties could have dramatic, negative consequences and potentially spark a trade war between the neighboring countries.

Already, Esquer and other exporters were having to contend with a 17.56% tariff on tomatoes imposed after Washington announced in March it was ending a longstanding agreement over alleged Mexican dumping of the fruit. If the new duties do take effect, Esquer is looking at another 5% being slapped on his products — potentially increasing to 25% in subsequent months — unless Mexico does more to stop illegal migration through its territory by a June 10 deadline per Trump’s demand.

“Right now more than anything there is a reaction of disbelief with everything that is going on,” Esquer, who’s been sending tomatoes and other crops to the United States for 60 years, told The Associated Press by phone during a break in the meetings.

“It also goes against the spirit there is between both countries, the agreements we have, the bilateral trade we have, which is very successful,” Esquer continued. “On the other hand, we’ll have to wait for the reaction of U.S. exporters to Mexico, because they are also going to see their exports threatened if Mexico launches some kind of mirror policy.”

From berries and automobiles to machinery and household appliances, all of Mexico’s exports stand to be hit with the tariffs. Avocado growers in Michoacan, electronics factory workers in Tamaulipas, across the border from Texas, auto parts exporters, all would feel the pinch.

Esquer, who does business from the tomato-growing northwestern state of Sinaloa, said it’s not just businessmen who stand to lose, since Mexico’s estimated 700 tomato exporters are responsible for directly generating some 450,000 jobs. According to Mexico’s Agriculture Department, last year some $2 billion in tomatoes were exported to the United States, second only to tequila and ahead of avocados.

The threat also throws into question the future of the USMCA trade deal between the U.S., Mexico and Canada, hammered out in months of contentious negotiations as a replacement for the North American Free Trade Agreement, one of the Trump administration’s most touted achievements.

Trump’s threat came the same day Mexico announced it would begin the process of ratifying the USMCA and less than two weeks after it successfully negotiated the lifting of U.S. steel and aluminum tariffs that had been a roadblock to final approval for the trade deal.

“It would really have a terrible impact on our producers and our exporters,” said Kenneth Smith Ramos, who led then-President Enrique Peña Nieto’s delegation to USMCA talks and is now an international trade consultant at Mexico City-based AGON.

“And it would hurt U.S. producers as well because they rely a lot on Mexican inputs for their production,” he added. “So it would reduce their competitiveness and force them to raise prices, which would ultimately of course hit consumers.”

That means people like Chuck Sholtis, CEO of El Paso, Texas-based Plastic Molding Technology Inc., which employs 100 people. Most of its business involves plastic injection molding for automotive, electronics and business products for maquiladoras, factories in Mexico that are run by foreign companies. Sholtis said his company has already suffered from U.S. steel tariffs on China that increased the costs of their tools, and it’s also been hit by slowdowns at ports of entry

Sholtis said the United States has found a niche in high-tech specialized manufacturing that’s part of a global supply chain. He fears that if more tariffs like this are implemented, or if the USMCA doesn’t take effect, the United States will lose its edge in manufacturing. He’s also worried about possible recession in Mexico and the United States.

“It’s illogical,” Sholtis said, “Tariffs go against one of the stated goals of the administration: to help manufacturing and thereby create high-skilled manufacturing jobs.”

The economic impact for Mexico was swift, with the peso down more than 3% against the U.S. dollar Friday. U.S. stocks likewise tumbled on Wall Street.

Initial macroeconomic projections from economists were also chilling.

Analyst Alfredo Coutiño of Moody’s Analytics said Mexican exports to the U.S. totaled $358 billion last year, or 80% of all goods the country sold overseas. Over the course of a year, he said, a 5% tariff would represent about $18 billion in damage or 1.5% of Mexico’s GDP, while a 25% tariff would amount to $90 billion or 7.3% of GDP.

Banco Base estimated that a 5% tariff could knock 2.85 percentage points off growth of Mexico’s exports, but said a weaker peso would help compensate.

Such tariffs would “likely push Mexico into a recession,” as well as disrupt regional supply chains and hurt investor confidence, Oxford Economics economist Gregory Daco wrote in a report.

A second, “less aggressive but potentially more effective” option would be to allow the peso to depreciate to the point where the tariffs would be neutralized, he added.

Via Twitter, Trump argued that “Mexico has taken advantage of the United States for decades. Because of the Dems, our Immigration Laws are BAD. Mexico makes a FORTUNE from the U.S., have for decades, they can easily fix this problem. Time for them to finally do what must be done.”

Last month, it raided the latest caravan of mostly Central American migrants traveling through the southern state of Chiapas, arresting hundreds and effectively breaking it up. There have been no significant caravans since then, with many migrants saying they now fear to travel in large groups.

Mexico also has deported thousands of migrants and frustrated thousands more with seemingly endless waits for permits that would allow them to travel legally through the country.

But sealing its porous southern border with Guatemala is probably impossible because Mexico lacks sufficient infrastructure to completely patrol a frontier that includes a river passing through dense jungle.

“We are carrying out our responsibility in immigration policy,” López Obrador said Friday morning, while making no promises of new action to stem the flow of mostly Central American immigrants transiting Mexico to reach the U.S. border.

“We have to help so that they don’t enter the United States illegally, but we also have to do it respecting human rights,” said López Obrador. “Nothing authoritarian. They’re human beings.”

Foreign Relations Secretary Marcelo Ebrard announced talks would take place next Wednesday in Washington with him and U.S. Secretary of State Mike Pompeo leading their respective nations’ delegations.

“There is a disposition for dialogue,” Ebrard tweeted. “We will be firm and we will defend the dignity of Mexico.”

In Ciudad Juarez, across from El Paso, Texas, 21-year-old Jennifer del Carmen Pérez Hernández, said she moved there three years ago because she couldn’t find work in her home state of Veracruz, on the Gulf coast.

Pérez said when she first arrived she was told that if Trump were elected, staff cuts might be possible. She’s kept her job operates an upholstery machine specialized for cars so far, but the tariff threat gives her new cause for concern.

“I’ve worked in sewing the three years that I’ve been in Juarez. It’s what I know,” Pérez said. “If there are cuts and I have to find work elsewhere, I would start at zero.”

Trump to hit Mexico with 5 percent tariff over border clash

Damian Paletta and Nick Miroff, Josh Dawsey

President Trump on Thursday said he would impose a 5 percent tariff on all goods entering from Mexico unless it stopped the flow of illegal immigration to the United States, a dramatic escalation of his border threats that could have sweeping implications for both economies.

The White House plans to begin levying the import penalties on June 10 and ratchet the penalties higher if the migrant flow isn’t halted. Trump said he would remove the tariffs only if all illegal migration across the border ceased, though other White House officials said they would be looking only for Mexico to take major action.

After the 5 percent tariffs are imposed on June 10, the White House said it would increase the penalties to 10 percent on July 1 and then an additional 5 percent on the first day of each month for three months. The tariffs would stay at 25 percent “until Mexico substantially stops the illegal inflow of aliens coming through its territory,” a statement by the president said.

The economic consequences of Trump’s new plan could be swift and severe. Tariffs are paid by companies that import products, so U.S. firms would pay the import penalties and then likely pass some costs along to consumers. Mexico exported $346.5 billion in goods to the United States last year, from vehicles to fruits and vegetables. And many manufactured items cross the border several times as they are being assembled.

White House officials did not immediately explain how driving up the cost of Mexican goods might stem the flow of migrants. If the tariffs damaged the Mexican economy, more of its citizens would try to cross the border to find work in the United States, experts said.

“Mexico is our friend and neighbor, a partner in trade and security,” said Glenn Hamer, chief executive of the Arizona Chamber of Commerce and Industry. “The president’s announcement is baffling and, if carried out, will be terribly damaging.”

Mexico vowed a response that could pitch the Trump administration into a full-scale trade war with one of its largest trading partners. This comes just days after the White House and China imposed stiff penalties on each other’s exports.

At a news conference, Mexico’s deputy foreign minister for North America, Jesús Seade, said the threatened tariffs would be “disastrous” and added that Mexico would respond “strongly.”

In a letter sent Thursday evening, Mexican President Andrés Manuel López Obrador addressed Trump in harsh terms, a marked change from the diplomatic posture he has tried to adopt since being elected last July. “President Trump, social problems can’t be resolved through taxes or coercive measures,” López Obrador wrote.

He said he would send his foreign minister to Washington on Friday “to arrive at an agreement that benefits both nations.”

But even as López Obrador suggested that there was a diplomatic solution, he unloaded on Trump for his administration’s immigration policy.

“How did a country of fraternity for all the migrants in the world become, from night to dawn, a ghetto, a closed space,” where migrants are stigmatized and mistreated, López Obrador wrote. He went on: “The statue of liberty is not an empty symbol.”

Trump has often tried to use tariffs and other import penalties as a way to pressure countries into changing behavior, but he has not yet done it on such a scale. In addition, he wrongly has said the cost of tariffs are shouldered by the countries that he targets.

Even some White House officials were caught off guard by the announcement, though planning within the West Wing escalated on Thursday afternoon. Vice President Pence was in Canada on Thursday, meeting with Canadian Prime Minister Justin Trudeau about ratifying an updated version of the North American Free Trade Agreement with Mexico, but it’s unclear if Trump’s newest tariff threat could upend those discussions.

White House officials believe Trump has powers under a 1977 law to impose tariffs on all imports from certain countries if he cites a “national emergency.” And several months ago, Trump declared a national emergency along the Mexico border because of a surge in migrants crossing into the United States.

But the 1977 law has never been used to impose tariffs in this way before, and Trump’s new actions could face legal challenges because of the scope of companies that would be impacted.

The new tariff threat combines two of Trump’s favorite issues — immigration and trade — and comes as he has struggled to score victories on either one.

A central element of Trump’s campaign was his assertion that the United States was being “invaded” by people across the Mexico border, a sentiment that resonated with many supporters. He has tried to rework trade rules and build a wall to stop the flow of migrants, but so far his efforts have failed to stem the surge of people crossing the border. Crossings at the U.S.-Mexico border, driven by Central American migrants seeking asylum, have peaked to their highest level in more than a decade.

One senior White House official, who spoke on the condition of anonymity to discuss internal deliberations, said there is broad support across the administration to push Mexico further by using tariffs to force action. Other aides, however, tried to talk Trump out of the idea, arguing that the threat would scare global markets and undermine passage of the United States-Mexico-Canada Agreement, or USMCA, which was just sent to Congress on Thursday by the White House. The trade deal aims to curb the type of tariffs Trump is now threatening to impose on Mexico.

“Trade policy and border security are separate issues,” Sen. Charles E. Grassley (R-Iowa), chairman of the Senate Finance Committee, said in a statement. “This is a misuse of presidential tariff authority and counter to congressional intent. Following through on this threat would seriously jeopardize passage of USMCA, a central campaign pledge of President Trump’s and what could be a big victory for the country.”

“We are going to do something very dramatic on the border because people are coming into our country,” Trump said.

On Wednesday, more than 1,000 Central Americans crossed into the El Paso area to surrender to U.S. authorities, the largest group of migrants that U.S. border agents have taken into custody at a single time. Trump tweeted a video of the apprehension late Thursday, declaring that “Democrats need to stand by our incredible Border Patrol and finally fix the loopholes at our Border!”

Deportations by Mexican authorities have increased threefold compared with the same period last year, according to the latest statistics, but the vast majority of Central American migrants appear to be successful at evading arrest en route to the U.S. border.

López Obrador campaigned last year on a promise to decriminalize migration and told audiences it was not Mexico’s job to assist the United States with the “dirty work” of deportations.

Trump has backed down on previous threats aimed at Mexico. He abandoned his oft-repeated campaign promise to make that country pay for a border wall. Trump is now using the powers of his national emergency to redirect U.S. taxpayer funds for the construction of replacement fences and barriers along the border.

In late March, Trump said he would immediately shut down the entire border if the Mexican government didn’t take more steps to prevent the flow of migrants, only to announce a week later that he would delay any action for a year. White House officials had spent days frantically trying to design how such a shutdown would be implemented.

The draft trade agreement sent to Congress on Thursday would, if ratified, replace the 1994 NAFTA deal. The draft allows Trump to send a final agreement in 30 days, a timeline intended to pressure House Speaker Nancy Pelosi (D-Calif.), who along with other Democrats wants changes to the agreement before any vote.

The top imports from Mexico include vehicles, electrical machinery, machinery, mineral ­fuels, and optical and medical instruments, according to the Office of the U.S. Trade Representative. The United States also imports a large amount of agricultural products from Mexico.

A March 2019 report from the Congressional Research Service said that the 1977 International Emergency Economic Powers Act had never been used before “to place tariffs on imported products from a specific country” but that it could be interpreted as giving the White House that power.

Along the Mexico border, U.S. agents have detained more than 100,000 migrants for each of the past two months, and the numbers in May are expected to be the highest yet.

In recent months, smuggling organizations have been moving large numbers of migrants from southern Mexico using “express buses” that reach the U.S. border in a matter of days. The buses make few stops and have lowered the costs for migration, making the journey faster, easier and cheaper for would-be customers.

U.S. officials say corrupt Mexican officials are allowing the ­buses to pass through highway checkpoints and in other cases facilitating their travel to the border by providing security escorts.

Mexican officials have said they’re doing everything they can to regulate the migration surge, and they provide police escorts in some cases to prevent criminal organizations from kidnapping and extorting families traveling with small children.

A Mexican official, speaking on the condition of anonymity to discuss sensitive diplomatic negotiations, said trade-related talks with U.S. officials have remained “positive,” and noted that López Obrador was also preparing to send the trade deal to lawmakers for approval. The official declined to say whether the White House has conditioned the deal on a migration crackdown by Mexican authorities.